Remands. What are they? Well, let’s learn all about this animal.
tr.v. re·mand·ed, re·mand·ing, re·mands
1. To send or order back.
a. To send back to custody.
b. To send back (a case) to a lower court with instructions about further proceedings.
This gives a whole new meaning to the term “transitive verb”. A remand can only originate from a higher tribunal or Court. The Regional Office is the lowest rung as most know. Here they make the decision. This is why you will see the term Agency of Original Jurisdiction or AOJ. If denied you appeal to the Board of Veterans Appeals or the BVA. This is the coat and tie stage. If the RO stepped on their necktie and has failed to do something important (and they almost invariably do) the Veterans Law Judge(VLJ) will remand it back to the RO for a repair order. Some can be very lengthy in their demands. ROs are very slack about throwing these claims together. A good example is a Vet who is on SSD or SSI. The Board will want to look at those records to gauge the reason for the grant. Often there is much to be learned from them. The RO knows this yet regularly allows these appeals to go up without the records. What’s worse, if the Vet doesn’t obtain or submit them to the RO, the VA very well may make no effort to obtain them even when put on notice of their existence. This is the most common error and it continues day in and day out.
Remands occur with regularity and sometimes numerous times, causing horrible delays. It is said that a remand can add a year to your appeal, if not more. The BVA has their own private remand center right there on I Ave. and Vermont NW. The only problem is you need to file a Waiver of Review in the First Instance granting the BVA judge the full authority to fix things without it going back on remand! See my discussion below. I’d say a one-year turnaround on an remanded Appeal to the RO is conservative. With the tremendous new backlog, it will only get worse.
If you lose at the Board, your appeal to the Court will be seen within a year. Most often, if it doesn’t entail a complex legal theory, it will be heard by a single judge. Because BVA judges rely so heavily on the case from the RO for accuracy, many errors finally come to light here. There is a simple reason for this. A Vet’s claim at the Court is invariably handled by a good attorney. The legal representation you got at the BVA was, in all likelihood, provided by VSOzoom.com. Most good VA lawyers can find a reason for a remand. They might not all be good ones, but that’s not the point. The remand allows the Vet to return to the BVA or AOJ and begin anew. This allows you, the Vet, another bite of the apple. Now that you know the reasons for your prior necktie party, you can make plans to fix it while it’s being remanded. You are free to submit new and material evidence in the form of that shiny magic nexus paper saying “more likely than less likely that….”
Some claims are remanded with the full knowledge that their chances are worse than snowballs in a warm environment. Others are predicated on documented errors. These are ones that are destined to win. The reason I believe this is simple. No Veteran will fight up to the Court over 5 years only to give up after a second defeat at the AOJ. If we do not see this Vet up at the Court on a second trip, chances are some horse-trading occurred below.
The CAVC will not brook incompetence or stupidity. They do not remand numerous times for follow on errors. They reverse. Reversing a decision results in a one-way remand back to the AOJ. There the VA examiners will arrange for your shiny new rating. It’s a given after your reversal that they will be granting the highest rating they can legally to prevent this from going back up. Someone puts the message out. Your C-file suddenly looks like a porcupine sprouting little red flags. The VARO Director has it open in a tab online with VBMS 24/7. It’s the first tab open and has an override for the 15-minute time out. Of course, this also happens if you file an Extraordinary Writ with the Court.
On occasion, the claim gets denied at the Court and floats up to the Fed. Cir. Again, here is another place where a remand is very frequent. Reversals by the Feds are rare. If it’s remanded by the Fed. Cir. for a redo, this can get ugly. Protocol demands that it be accomplished much like untying the Gordian knot. The claim has to go back to the Court so they can put their remand on it. The BVA gets it and does likewise. If you are lucky this may only take a year or two to get back to your AOJ.
Here again, the claim starts over. For nice round numbers, say you filed on January 1, 2000. You go through the whole rigamarole at the AOJ including a DRO review. They finally release it to the BVA in June 2003. The BVA gets it docketed and the show begins in late 2004. If you don’t get remanded, it would go to the Court and see daylight by 2006. Any remands would add a year+ to this. If you get one at the Court (and you will 65% of the time), back you go to the place where the error was perpetrated. Sometimes that’s the BVA. It’s not always the RO. If it does go back up, it begins a brand new odyssey at the Court. Assuming the denial is sustained by the Court, you can assume another year to get your docket at the Fed. Circuit. This merry-go-round can last for a decade without any remands, but rarely does. Remember, getting a docket is getting a place in line. It isn’t the day you walk into Court.
To add insult to this process, the VA invented a new torture-a RO at the BVA is how I would describe it. The Appeals Management Center or AMC, can be the big roadblock. If you have given the BVA a waiver of review to the RO, your claim will fall into this black hole for a while if it is deficient. The AMC will attempt to rectify whatever it is that needs the grease. When they have finished trying to grant or deny, they send it back up for another redo with the VLJ. This assumes they deny and issue a SSOC. Even though this is in-house, it can still eat up to a year. About the only thing positive is they rarely lose the evidence. But, with the new National Work Queue, this is less frequent. The AMC is no longer a booming concern unless your Vet’s name is Macklem and the Court has spoken…twice(as well as the Fed. Circus).
Fortunately for us, the Court and the Fed. Circuit do not have these “remand centers” . Justice is not perfect but it is guaranteed to be time consuming. Remands are boogers. This is why my whole strategy I advocate is to get this done at the lowest level. Certainly there is the point of diminishing returns at your AOJ. DRO reviews are time-consuming, and delay the inevitable trip to D.C. if it’s in the cards. In this respect they can be as nasty as remands. I’ve done 4 and won 0.
I have never had a true remand. I suppose my “win” at the BVA in 1992 resulted in a remand for the 0% rating awards. I did get a sweet letter telling me this. To be truthful, I was so overwhelmed at winning 0%, I was distracted and never absorbed the enormity of the moment then. I’m relatively certain I mailed them a thank you note.